of the mesne profits, if the verdict shall be for the plaintiff. 1794. There can be no great hardship in this. In actions of waste, dowry, assize, and all others, where the thing itself, as well as the damages, is recovered, the jury are liable to the same inconvenience: nor can I perceive any great perplexity, that can arise in determining the rent, or annual value, of a house, or parcel of land, when complete evidence is given of it. It appears to me, that the inconvenience, or hardship, is the other way. After a person has been unlawfully kept out of his house, or land, for a series of years, and undergone great trouble and expense, in recovering a judgment for them; to give him the possession merely, without any satisfaction for the use and occupation pending the action, does not seem to be complete justice. To tell him, "You must sue for the mesne profits in a "new action, fee counsel, attend the Courts, produce witnesses. "and have a new trial for the sole purpose of fixing their value," is certainly imposing an improper burthen upon him, if justice can be had in a more speedy, cheap, and easy way. Taking a verdict for the amount of the mesne profits, as well as on the title in the ejectment, will prevent this circuity, delay, and expense; and I believe it to be equally beneficial for the defendant: for, if on the trial he shows a reasonable ground for controverting the plaintiff's claim, or a specious title in himself, a jury would be inclined to give but very moderate damages against him (of which the jury in the action for the mesne profits can have no consideration, as the title cannot in that action be again gone into) and he would certainly be saved the costs and expenses of the second suit. It is in argument, in law, and in logic, as it is in nature (destructio unius, est generatio alterius) that the destruction of an objection, begets a proof. I shall, however, proceed to consider the arguments and proofs on the other side of the question. This improvement of the action of ejectment has been suggested by the Court in the case of Treherner v. Gressingham. 2 Barn's Notes, 59. 1 Lill. P. R. 680. Whitefield's case, Buller's Nisi Prius, 88. There has been no judicial opinion given on this subject, in the Supreme Court of Pennsylvania, prior to the revolution, that I have heard of, unless it was in the case of the Lessee of James Dixon v. Thomas Hosack tried on the 15th of April 1775, when 41. were awarded for the plaintiff: but such an opinion has been given in Delaware above thirty years ago; and the general prac tice in that state, has been ever since, to take a verdict for the mesne profits, in the action of ejectment. Nay, my memory does not serve me in recollecting a single instance, where an action of trespass, for the mesne profits, has been brought in Delaware, from the time mentioned; though, without doubt, it might have been done. There has been no similar precedent in Pennsylvania since the revolution; but, on the other hand, it has been recom mended 1794. mended more than once in the Supreme Court of this state, tọ take a verdict for the mesne profits in the ejectment: and the point now before the Court was argued, and the same case cited, by Messieurs Tilghman and Sergeant, in the case of William Tharpe v. John Bell, of September term 1787, when judgment was given in favour of the measure. So, in an ejectment, on the demise of Jasper Yeates, Esq. and others v. Charles Stewart, which was tried at Nisi Prius at Chambersburgh, for the county of Franklin, in June 1789, a verdict was taken for 130%. damages for the mesne profits; and a judgment rendered upon it, for the plaintiff, in bank. Upon the whole, as it appears, that this Court has the power of allowing a verdict to be given for the mesne profits, as damages in the ejectment; as the judges in England, so late as the year 1742, could see no reason why it should not be done; as it has been in use for many years in the state of Delaware, under similar authority, and no inconvenience from the practice has hitherto been there discovered; as it has been in precedent in this Court by judicial decisions; and as it is calculated, in my judgment, for the reasons assigned, to answer more fully the ends of justice and convenience, by avoiding unnecessary delay, a circuity of action, and a double expense to suitors; I still must hold the opinion, which my former brethren, as well as myself, unanimously, entertained upon the subject. If it shall be thought best by the Court, that plaintiffs in ejectments should in all cases be turned round to an action of trespass, for recovering the mesne profits; yet, after what has passed, on former occasions, I conceive it ought not to be the rule in this action; but should be applied only to future cases: because, at the present moment, the Jaw in Pennsylvania is, that the verdict in this action is regular, and agreeable to the practice of the Supreme Court. Est boni ju dicis ampliare justitiam. OF PENNSYLVANIA. September Term 1794. A The Commonwealth versus Chambre. HABEAS corpus was issued to the jailor of Philadelphia, to bring before Judge SHIPPEN, the bodies of Magdalen and Zare, two negro women, committed as the absconding slaves of Mrs. Chambre. The Judge, after hearing the case opened, adjourned it, for argument and decision, to the Supreme Court, on the 13th of September 1794, when the following facts appeared: Mrs. Chambre was a widow lady, in the island of St. Domingo, and owned the negroes in question as slaves; but on the confl gration at Cape Francois, she fled, bringing them with her, to Phi-. ladelphia; where she resided five calendar months and three weeks; a period that exceeds six lunar months, in computation of time. She then removed with the negroes to Burlington, in the state of New-Jersey, designing, as it was suggested, to avoid the operation of the act, for the gradual abolition of slavery; but no proof was offered, that she had ever intended to settle in Pennsylvania. The negroes absconding from Mrs. Chambre, came to Philadelphia; and now they asserted their freedom, under the 10th section of the act, which declares all unregistered negroes and mulattoes to be free, "except (inter alia) the domestic "slaves attending upon persons passing through; or sojourning "in this state, and not becoming resident therein: provided such "domestic slaves be not aliened, or sold to any inhabitant, nor "retained in this state longer than six months." 1 vol. State Larve, 841. Dall. edit. For the negroes, it was contended, that, upon authority, the general legislative expression, must be construed to mean lunarand not calendar, months: for which were cited, 5 Co. 2. Cro. . 167. 1 Stra. 446. 2 R. Com. 141. 3 Burr. 1455. Dong, 446. 1794. 463. And that, even if the computation by calendar months were more usual at common law, a different construction would be adopted in favour of liberty, and to prevent an evasion of the most honourable statute in the Pennsylvania code. Harg. Co. Litt. 145. b. (2) But the COURT (stopping the counsel for Mrs. Chambrè) said, that they were, unanimously, of opinion, that the legislature intended calendar months; that the same expression, in other acts of the general assembly, has uniformly received the same construction; Brudenell et al. v. Vaux et al. (1) that there was nothing illegal, or improper, in the conduct of Mrs. Chambrè, on the occasion; and that, therefore, the negroes must be remanded into her service. Lewis, Ingersoll, and Franklin, for the negroes. (1) This oase has been reported in 2 Dall. Rep. 302. OF PENNSYLVANIA. September Term 1795. INDI Respublica versus Mulatto Bob. NDICTMENT for murder of the first degree. The charge of the COURT was delivered by the Chief Justice, who stated the facts and the law to the following effect: (1) M'KEAN, Chief Justice. The evidence in this case may be comprised in a few words. It appears, that a wedding being fixed for Easter Monday, a considerable number of negroes assembled; and, about 10 o'clock at night, a quarrel arose between mulatto Bob, the prisoner at the bar, and negro David, the deceased. For awhile, the parties fought with fists; and the prisoner was heard to exclaim " Enough!" The affray, however, became general, and continued so for some time. When it was over, the prisoner went to a neighbouring pile of wood, and furnished himself with a club. He was advised not to use it, but he declared that he would, and entered the crowd with it in his hand. After remaining there about ten minutes, he left the crowd, without his club; and, again repairing to the wood-pile, took up an axe. Being, likewise, dissuaded from returning to the crowd with the axe, he said "he would do it; and striking the instrument, with great passion, into the ground, "swore, "that he would split down any fellows that were saucy.' " Accordingly, he mixed once more among the people; a struggle (1) During the trial the counsel for the prisoner offered a negro slave as a witness in his favour; but, the attorney-general objecting to his competency, he was rejected, without argument: and it was said by M'KEAN, Chief Justice, That it was a settled point at common law, that a slave could not be a witness, because of the unbounded influence of his master over him; which was, at least, equal to duress: that the act of assembly was in aid of the common law, not to change its principles: and that it would be difficult to administer an oath to a slave, for want of knowing any religion he professed. U VOL. IV. was |